Citation Nr: 0021197
Decision Date: 08/11/00 Archive Date: 08/18/00
DOCKET NO. 99-02 431 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for asbestosis.
REPRESENTATION
Appellant represented by: The American Legion
INTRODUCTION
The veteran had active duty for training from March to
September 1962.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 1998 decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida.
FINDING OF FACT
The claim of entitlement to service connection for asbestosis
is plausible.
CONCLUSION OF LAW
The claim of entitlement to service connection for asbestosis
is well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The threshold question is whether the veteran's claim of
entitlement to service connection is well grounded.
38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible
claim that is meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). There must be more than a mere allegation, the claim
must be accompanied by evidence that justifies a belief by a
fair and impartial individual that the claim is plausible.
Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Moreover,
where a determinative issue involves a diagnosis or medical
causation, competent medical evidence to the effect that the
claim is plausible is required. Grottveit v. Brown,
5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992). For the veteran's claim to be well
grounded, there must be competent evidence, both of a current
disability and of an etiological relationship between that
disability and service. Caluza v. Brown, 7 Vet. App. 498,
506 (1995); Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated while
performing active duty for training. 38 U.S.C.A. §§ 101(24),
106, 1131 (West 1991).
For purposes of determining whether or not a claim is well
grounded, the evidence is generally presumed to be credible.
The veteran has indicated that he was exposed to asbestos
while working in boiler rooms at Fort Bragg and Fort Jackson
during his active duty for training in 1962. He has
submitted lay statements in support of this and a June 1962
service medical record reflects that he fell in a boiler room
at Fort Bragg.
A July 1996 Social Security Administration award letter
reflects that the veteran had pulmonary asbestosis and a
November 1997 letter from the veteran's private physician
indicates that the veteran has asbestosis that is related to
and could have possibly been while the veteran was on active
duty working around boilers from March 1962 through May 1962
at Fort Jackson, South Carolina, and from May 1962 through
September 1962 at Fort Bragg, North Carolina. A subsequent
letter from the same physician, dated in October 1998,
reflects that it was more likely than not that the veteran's
asbestosis was a work-related condition.
On the basis of the above record, there is competent medical
evidence that the veteran currently has asbestosis and there
is competent medical evidence that relates this asbestosis to
exposure to asbestos in a work environment, including the
veteran's environment during his active duty for training.
With consideration that statements with respect to exposure
to asbestosis are presumed credible, a well-grounded claim
has been submitted.
ORDER
The claim of entitlement to service connection for asbestosis
is well grounded. To this extent only, the appeal is
granted.
REMAND
An April 1998 letter to the veteran requested that the
veteran ensure that treatment records from the private
physician, who had provided the opinion, be furnished to VA.
A separate April 1998 letter to the private physician
requested that records relating to his treatment of the
veteran be provided. However, these treatment records have
not been forthcoming.
The record does not indicate what the veteran's occupation
was either prior to or subsequent to his active duty for
training in 1962, or that an attempt has been made to obtain
Social Security Administration records. Further, the record
does not reflect that an attempt has been made to obtain any
official information with respect to whether or not asbestos
existed in boiler rooms located at Fort Bragg and Fort
Jackson from March to September 1962.
In light of the above, the appeal is REMANDED to the RO for
the following:
1. The RO should contact the veteran and
request that he provide a history of the
occupations he has worked in prior to his
active duty for training in 1962 as well
as the occupations he has worked in
subsequent to his active duty for
training in 1962. After gathering this
information, the RO should attempt to
ascertain whether or not the veteran was
exposed to any asbestos as a result of
any indicated occupations.
2. The RO should again contact the
physician who provided the January 1997
and October 1998 letters and again
request that he provide copies of all
records relating to any of his treatment
of the veteran.
3. The RO should contact the
installations at Fort Bragg, North
Carolina, and Fort Jackson,
South Carolina and request assistance in
determining whether or not either or both
installations had asbestos located in
their boiler rooms during the period from
March through September 1962. All leads
should be followed to their natural
conclusion.
4. The RO should contact the Social
Security Administration and request
copies of all records, both medical and
administrative, regarding any
determination it has made relating to
awarding Social Security benefits to the
veteran.
5. Then, the RO should arrange for a VA
pulmonary examination by a board-
certified specialist, if available, to
determine whether or not the veteran
currently has asbestosis, and, if so, the
etiology of any currently manifested
asbestosis. All indicated tests and
studies should be conducted and all
findings described in detail. The claims
file must be made available to the
examiner for review. The examiner is
requested to provide an opinion as to
whether it is at least as likely as not
that any currently manifested asbestosis
is related to exposure to asbestos during
the veteran's active duty for training.
A complete rationale should be given for
all opinions and conclusions expressed.
6. Following completion of the
foregoing, the RO should review the
claims folder and ensure that all of the
requested development has been completed.
If any development is incomplete,
corrective action should be taken.
7. Thereafter, the RO should undertake
any other indicated action and
readjudicate the issue on appeal.
8. If the benefit sought on appeal is
not granted to the satisfaction of the
veteran, a supplemental statement of the
case should be issued, and the veteran
and his representative afforded the
appropriate opportunity to respond.
Thereafter, the case should be returned to the Board for
further consideration, if otherwise in order. By this
REMAND, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is otherwise notified by the RO.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
MILO H. HAWLEY
Acting Member, Board of Veterans' Appeals
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